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District Court 9 February 2024

R v Lindrea

[2024] NSWDC 148

Traffic & driving
CRIME SENTENCE DANGEROUS DRIVING OCCASIONING DEATH EARLY GUILTY PLEA OFFENDER SUSTAINS INJURY FINDING OF REMORSE

Citation: R v Lindrea [2024] NSWDC 148
Court: District Court of New South Wales
Date: 9 February 2024
Judge: Grant DCJ

Background

The offender, a 35-year-old professional truck driver with eight years of experience, was driving a Kenworth prime mover towing two trailers loaded with approximately 40 tonnes of grain along Federation Way, Daysdale, a rural road in regional New South Wales. On 11 August 2022, he was travelling southbound at a speed within the 100 km/h limit but above an advisory speed of 75 km/h on a bend. He was also on a hands-free phone call at the time of the collision.

As he entered the left-hand bend, the offender's truck crossed the centre line and collided with a northbound articulated semi-trailer driven by the deceased, Vincent James Gooden, aged 30. The collision occurred entirely within the deceased's lane. Mr Gooden died immediately from fatal injuries. The offender sustained critical injuries including a traumatic brain injury, liver laceration, rib fractures, and multiple other serious injuries.

The offender pleaded guilty on 10 October 2023 at the earliest opportunity in Albury Local Court to dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW). He was committed to the District Court for sentencing.

  • What sentence was appropriate for dangerous driving occasioning death, having regard to the objective seriousness of the offence and applicable guideline judgment in R v Whyte?
  • How should the court weigh mitigating factors, including the early guilty plea, the offender's own injuries, genuine remorse, and good rehabilitation prospects?
  • Whether the sentence should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, applying the community safety test in Stanley v Director of Public Prosecutions [2023] HCA 3.
  • What period of licence disqualification was appropriate, given that the offender is a professional driver with financial dependants?

Decision

Grant DCJ assessed the objective seriousness of the offence by reference to the guideline judgment in R v Whyte (2002) 55 NSWLR 252, treating it as a reference point rather than a starting point or tramline. The driving involved multiple contributing factors: the advisory speed was exceeded, the road surface was wet, the offender was carrying a very heavy load, and he was on a phone call immediately before the collision. Although the speed advisory sign was not mandatory, the combination of these circumstances rendered the driving dangerous. No aggravating features such as intoxication, erratic driving, or sleep deprivation were present.

The offender received a 25% reduction in his sentence for his early guilty plea, reducing a notional starting point of two years and eight months to two years' imprisonment. The court accepted that the offender had expressed genuine remorse and found his prospects of rehabilitation to be excellent. His own serious physical injuries were also a relevant sentencing consideration.

On the question of full-time custody versus an ICO, the court applied the forward-looking, community safety analysis required by Stanley v Director of Public Prosecutions [2023] HCA 3. Grant DCJ was satisfied that community safety would be better served by an ICO than by full-time imprisonment. The offender had stable employment and a pro-social relationship with financial dependants, was unlikely to reoffend, and was assessed as having excellent rehabilitation prospects. A community service work component was not imposed because the offender's ongoing physical injuries made him unsuitable.

On licence disqualification, the court took into account financial hardship evidence and the offender's reliance on driving for his livelihood. The minimum disqualification period of 12 months was imposed.

Orders Made

  • The offender was convicted and sentenced to two years' imprisonment (reduced from a pre-discount term of two years and eight months, reflecting a 25% guilty plea discount).
  • The sentence is to be served by way of an Intensive Corrections Order, with the following conditions:
  • The offender must not commit any offence.
  • The offender is to be supervised by a Community Corrections Officer.
  • The offender is to undergo treatment and/or rehabilitation programs.
  • The offender is to report by telephone to the Albury Community Corrections Officer within 7 days of the order.
  • Community service work was not imposed due to the offender's physical injuries rendering him unsuitable.
  • The offender is disqualified from driving for 12 months (the statutory minimum).

Key Takeaways

  • The District Court confirmed that the R v Whyte guideline judgment functions as a reference or check, not a starting point or tramline, and must not impermissibly confine sentencing discretion.
  • A 25% discount for an early guilty plea applies in full even where the Whyte guideline contemplates a lesser 10% discount, because the two operate in different procedural contexts.
  • Under the Stanley v Director of Public Prosecutions [2023] HCA 3 framework, community safety is the paramount consideration when choosing between full-time imprisonment and an ICO, assessed on a forward-looking basis. Where the risk of reoffending is low and rehabilitative prospects are strong, an ICO may be the appropriate disposition even for a serious offence involving a death.
  • Serious physical injuries sustained by an offender in the same collision are a relevant mitigating consideration at sentencing.
  • The minimum licence disqualification period may be appropriate where an offender is a professional driver with financial dependants, though this will depend on the particular facts and any supporting evidence before the court.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66(3)

Cases:
- R v Whyte (2002) 55 NSWLR 252 (guideline judgment)
- Regina v McNaughton (2006) 66 NSWLR 556
- Stanley v Director of Public Prosecutions [2023] HCA 3
- Regina v Eaton [2023] NSWCCA 125
- R v Zheng [2023] NSWCCA 64
- The Queen v Balla [2021] NSWCCA 325
- R v Pullen [2018] NSWCCA 264
- Thai v Regina [2009] NSWCCA 314